Cooperative Litigation – by Theresa Lorella

Theresa Lorella: Cooperative LitigationBy Theresa Lorella

Attorney at Seattle Divorce Services

Most people do not approach an impending separation from their spouse with the desire to “fight it out.” In fact, most people hope that they can avoid unnecessary pain to themselves, their spouse and their children whenever possible.

While divorces on TV and in the movies are still played out in high conflict legal battlefields, we are very lucky that in real life there are actually several options for partners to choose when approaching a dissolution of their relationship. Some of these options are variants of the more traditional litigation model, and others are more modern approaches with roots in dispute resolution.

Over the series of the next few articles, we’ll talk about the range of possibilities that people can tap into to move through a dissolution or legal separation without the high level dramatics and emotional pain (and cost) of a traditional litigation case.

Many people find themselves somewhat “accidentally” in a litigation case whether they intended to take that approach or not. This is most often simply because you have to file a case with a Superior Court, and often that will trigger a case schedule and other litigation deadlines that begin to accrue. Couple this scenario with being the spouse who receives notice that such a case has been started, and often folks are off and running to comply with a case schedule, including hearings, discovery and pretrial work that they may have never intended upon.

The good news is that most counties will require a form of mediation or settlement conference before the case goes to trial; the bad news is that usually is not required until after you have done all of the pretrial litigating, about ten months into your case.

More good news is that you have the power, if agreed upon by your spouse, to either start your case (or even change the course of one already begun) in such a way that you can use the framework of a litigation case schedule – but focus on the tools from the alternate dispute resolution world to take down the level of conflict, and to start working towards the mutual goal of getting your case resolved effectively. This doesn’t mean that you need to immediately agree on how to split the retirement or who gets the kids on Christmas, but simply agree on how to best use the tools and processes available to gather information in a cost-effective manner, and begin to discuss the issues at hand.

The most effective way to take this step back is to agree to get into a mediation setting earlier than what is required by the court case schedule. Where you are already in the process will determine what type of mediation structure and timing would best serve your case. What is often most effective is a situation where both parties agree to work with a facilitative mediator (with their attorneys as well) in a format where the mediator can help to direct the next best steps for gathering information, for determining where the main points of disagreement lie, and helping to determine if other experts are needed to facilitate a faster and more lasting agreement between the parties.

This process is different from the settlement conference process that is required under the court case schedule, as it is often not a one-day “stay until you settle” session, but rather a series of meetings where the parties begin to take control back from the case schedule and determine their own fate in the litigation process. If this process does not work, the parties may always fall back to the case schedule and take the matter before the trial judge. That said, working through such a mediation has an extremely high success rate and often parties are able to not only settle their matter without the need for trial, but do so in a way that feels far more authentic and satisfying.

Not all litigation cases may be a good fit for a change in gears, but many, and I would even say most, are. It is also becoming increasingly popular amongst family law attorneys to use tools from alternate dispute resolution and so the cooperative litigation model is growing in popularity.

If you have already started a case and have begun to litigate, but are hoping to take down the level of conflict and move the case towards a more peaceful resolution, talk to your attorney about the possibility of using the tools of facilitative mediation for your case.